All posts by Nicholas Stephanopoulos

Introducing RPV Near Me

The following is a guest post by Ruth Greenwood, the director of the Election Law Clinic at Harvard Law School:

The Election Law Clinic at Harvard Law School (“ELC”) now offers free access to summary measures of racially polarized voting (“RPV”) for every county in the country. The analysis was conducted by Christopher T. Kenny, a Ph.D. candidate in the Department of Government at Harvard University. All the results are available to view and download.

This project is the latest step in my efforts to promote more and better representation for communities of color in local government. A key policy in this area has been the enactment of state VRAs (SVRAs) across the country. California was first out of the pack in 2002, and in recent years Washington, Oregon, Virginia, and New York have all built on the CVRA in developing their own statutes (with ever more expansive and creative ways for local governments to enfranchise and represent communities of color). As the 2023 legislative sessions begin, I hope and expect to see even more states adopt SVRAs.

I hope RPV Near Me will be a resource for voters, community groups, activists, lawyers, and journalists in states with SVRAs to identify jurisdictions where the electoral system could be improved. I also hope RPV Near Me will be a resource in states considering adopting an SVRA—it should help with the identification of communities that might be better represented through new electoral systems.

The site includes visualizations of the RPV results for a number of recent elections in every county in the U.S. This information can give us a sense of the voting patterns of members of different racial and ethnic communities around the country. The site is not intended to be used in litigation (as all VRA litigators know, court cases also require analysis of endogenous elections); rather, the site should be used to identify trends and potential hotspots. We are exploring adding more data to the site (such as analysis for Asian American and Native American communities, and for cities, towns, and villages). If there is data that might help you seek better representation for communities of color in local government, please reach out to me to discuss.

Overview of the Available Data

Here I show some examples of the types of conclusions you might draw from the high-level data available on RPV Near Me. In Middlesex County, MA (home to the Election Law Clinic), there is little evidence of RPV (except in the Governor’s race in 2018):

While in Jacksonville, FL (where the Election Law Clinic currently represents, among others, the Jacksonville Branch of the NAACP in a racial gerrymandering lawsuit), there is evidence of extreme RPV between Black and white voters:

Currently, the site only offers data for four categories of voters (white, Black, Hispanic, and other). These categories allow you to see where there is evidence that Black and Hispanic voters form a political coalition, for example, in Virginia Beach, VA; and where there is not such evidence, for example, in Miami-Dade, FL:

Finally, there are some places where the minority communities are so small that we can’t get accurate RPV estimates (because the credible intervals are just too large), for example, Aurora County, S.D.:

Data and Methods

The data and methods used for RPV Near Me were provided by:

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Jacksonville racial gerrymandering remedy

Yesterday a federal district court rejected the remedial map the City of Jacksonville adopted in an effort to cure racial gerrymandering violations in its original city council plan. Instead the court ordered the use of one of the remedial maps offered by the plaintiffs (who are represented by Harvard Law School’s Election Law Clinic, the ACLU of Florida, and the Southern Poverty Law Center). Two points are particularly notable about the court’s decision. First, the court held that, in assessing racial gerrymandering remedies, it can be probative to group certain districts. Jacksonville’s heavily Black districts were collectively almost identical in the city’s remedial map as in its original plan, even though each of these districts individually changed quite a bit. That collective continuity helped to show that the original violations hadn’t been fully cured. Second, the court held that reliance on nonracial criteria like incumbent protection and partisan advantage can perpetuate racial gerrymandering if these criteria have the effect of largely preserving the structure of the original unlawful plan. That’s exactly what happened in Jacksonville: to protect incumbents, maintain the original plan’s partisan balance, and avoid disrupting districts that weren’t invalidated, the remedial map had no choice but to closely resemble the original unlawful plan. Some key excerpts from the decision are below:

[T]he vast majority of Black residents living in the Packed Districts under the Enjoined Plan remain in one of the Packed Districts under the Remedial Plan. And, to the extent the City Council did move some residents out of the Packed Districts and into a Stripped District, those residents were disproportionately White. In addition, the shapes of the Remedial Challenged Districts and the core retention data show that the City Council largely left the core of Districts 2, 12, and 14 unchanged while Districts 7, 8, 9 and 10, wedged between them, are significantly reconfigured but largely among themselves. While the City points to the significant changes to the boundaries of Districts 7, 8, 9, and 10, as evidence that the Remedial Plan does not perpetuate the constitutional infirmities of the Enjoined Plan, see Reply at 35, this evidence merely supports what Plaintiffs contend: that White voters largely remain in Districts 2, 12, and 14, and “Black voters are shuffled among—but not out of—the Packed Districts.” . . .

[W]hile the City is correct that it made extensive revisions to Districts 7, 8, 9, and 10, it appears that the City failed to make meaningful ones—it failed to actually remedy the effects of the racial gerrymandering discussed in the Court’s Preliminary Injunction Order. The voice of Black voters largely remains unchanged in that it is still confined to the Packed Districts that were the four historically majority minority districts. It is exceedingly difficult to see how repacking the same Black voters into a new configuration of the same four districts corrects, much less completely corrects, the harmful effects of the City’s decades-long history of racial gerrymandering. . . .

[T]he legislative history unequivocally establishes that the City’s failure to unpack Districts 7, 8, 9, and 10 stems from the high priority the City placed on protecting incumbents and candidates during the redistricting process, and relatedly, maintaining the Council’s partisan balance. . . .

[U]nder the circumstances of this case, the City’s insistence on protecting incumbents embedded, rather than remedied the effects of the unconstitutional racial gerrymandering described in the Court’s Preliminary Injunction Order. . . .

Despite the City’s insistence that its mapmakers started from “scratch,” the mapmakers were constrained from the outset by the need to separate incumbents—oddly including even those who were not eligible or had declared their intention not to run again as incumbents to be protected. By making this factor a priority, even for incumbents who were not able or intending to run again, the City all but guaranteed that the unconstitutional effects of the Enjoined Plan and its predecessors would be carried forward into the Remedial Plan.

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Partisan Gerrymandering Chapter

I just posted this book chapter on partisan gerrymandering, which will be part of the Oxford Handbook of American Election Law (coming out next year). Thanks to Gene Mazo for assembling and editing the volume and organizing terrific workshops for contributors.

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

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Eleventh Circuit Purcell Ruling

In the Jacksonville racial gerrymandering case that Harvard Law School’s Election Law Clinic is litigating, the Eleventh Circuit just denied the city’s effort to stay the district court’s decision striking down seven city council districts. This means that Jacksonville will have new — lawful — districts in time for its 2023 municipal election. The Eleventh Circuit ruling is notable for its determination that five months before an election (when the district court issued its decision) is outside the window in which Purcell applies. The Eleventh Circuit ruling also relied on the Supreme Court’s recent decision in Rose v. Raffensberger, rejecting a defendant’s Purcell argument where the defendant had previously represented that there was enough time to implement changes if the plaintiffs prevailed. Here too, as in Rose, Jacksonville initially agreed that a new district map would be feasible if it was implemented by December 16 — only to turn around on appeal and argue for a different timetable. Thanks to Rose and now this ruling, these kinds of ambushes by defendants should no longer succeed.

In League of Women Voters of Florida, we found an injunction to be within Purcell’s “outer bounds” because it was issued while local elections were ongoing, voter registration (which was implicated by the injunction) had begun, and the next statewide election was less than four months away. Id. Here, the district court issued its injunction three months prior to the candidate qualifying period1 and five months prior to the elections for a single county. Applying Purcell to this case would extend the “eve of an election” farther than we have before.

Our decision not to further those outer bounds—at least, not in this case—is bolstered by Rose v. Raffensperger. . . . [Defendants] clearly stated as far back as July 1, 2022, that they would be able to conduct the March 2023 elections if they had maps in place by December 16, 2022. Indeed, the entire schedule on which the district court proceeded was developed with Appellants, working backwards from the date they provided, and the final schedule was accepted “without caveat.” Given Appellants’ position that the election can be conducted on the schedule they made collaboratively with the district court and Appellees, we do not believe Purcell applies here.

And, finally, we find Purcell’s heightened standard is not appropriate because the district court found the primary reason for applying that standard—risk of voter confusion—to be lacking. See Purcell, 549 U.S. at 4–5. Indeed, after conducting an extensive analysis, and recognizing courts should be reluctant to issue injunctions affecting county elections, the district court concluded that Appellants did not show “any substantial risk of harm, confusion, or disruption in the March 2023 election.” We find this determination was not clearly erroneous.

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Census data lawsuit

Harvard Law School’s Election Law Clinic (together with Selendy Gay Elsberg PLLC) filed this lawsuit to compel the Census Bureau to disclose important data about the Bureau’s 2020 products. For the first time, the Bureau used a method known as differential privacy by which random “noise” was added to the raw data. The Bureau then used another algorithm to further adjust the data after the application of differential privacy. This further adjusted data was disclosed to the public; the intermediate data — after the application of differential privacy but before post-processing — was not. It’s this intermediate data whose disclosure the Clinic’s lawsuit seeks. The intermediate data raises no privacy concerns (thanks to the application of differential privacy) but is vital to researchers interested in understanding any distortions or biases in the Bureau’s released 2020 products. Here’s some more information about the matter.

To analyze the potential impact of the 2020 DAS on accurate population demographics, including the effect of post-processing, Dr. Phillips requested access to the noisy measurements file underlying the published 2020 Census data and the 2010 Census demonstration data product. The files requested through the FOIA are important because biases in the data can harm communities’ ability to obtain their fair share of government funding and their ability to enforce their civil rights, including the right to equal political opportunity under the Voting Rights Act. Bias in census data also interferes with academic research in health, public opinion, and many other fields.  Like much of political science research, Dr. Phillip’s public opinion research relies on census data as a key input to accurately characterize population-level estimates. With the planning of the 2030 Census underway, understanding the biases accompanying the Census’s current methods is pivotal to improving the accuracy of its data, ensuring privacy, and promoting civil rights under the Voting Rights Act.

The complaint details that Dr. Phillips is concerned that his research has been harmed because the post-processing phase may have systematically inflated the census-reported populations of sparsely populated and homogeneous areas while shrinking those with greater population density and diversity. This distortion in the 2020 Census would make the data less fit for use in Dr. Phillip’s research while also resulting in an inequitable distribution of political power and resources, likely harming racial minority groups.

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Shapiro, Stephanopoulos & Tokaji Amicus Brief in Moore

Carolyn Shapiro, Dan Tokaji, and I are the amici in this brief in Moore v. Harper, represented by Harvard Law School’s Election Law Clinic. Our brief highlights the doctrinal and practical mayhem that would ensue if federal courts were to suddenly insert themselves into matters of state law, as dictated by the independent state legislature theory. Here’s an excerpt from the brief’s introduction:

Petitioners’ gloss on ISLT provides courts with no manageable standards. Petitioners propose a version of ISLT that limits the application of what they describe as “vague” constitutional provisions. But they offer no clear guidance for how to tell when a constitutional provision is so vague, such that state courts are prevented from ordinary judicial review. The best attempts of their amici to identify a clear statement rule are similarly opaque and would disrupt centuries of state constitutional law.

ISLT is not just a matter of the allocation of power within a state, instead it effects a massive shift from state to federal courts. It undermines the ordinary processes of judicial review and reallocates questions of state law into the federal courts, implicating concerns key to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), particularly forum-shopping and the inconsistent administration of state law.

ISLT threatens to decimate the conduct of elections across the country by effectively creating two sets of rules for administering elections and by destroying legislative delegation. ISLT could even render inoperable the very functioning of election administration systems nationwide.

Finally, ISLT also threatens to federalize election disputes, overburdening the federal judiciary and potentially upending approaches to state statutory interpretation without a clear replacement. And ISLT creates questions about a state legislature’s ability to bind its own hands in regulating federal elections. These ambiguities risk involving the federal courts in fundamental questions of state governmental design—questions that the federal Constitution leaves to the states.

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Jacksonville Racial Gerrymandering Decision

In a lengthy opinion today, a federal court granted a preliminary injunction barring Jacksonville from holding any elections under its newly drawn city council districts. Seven of those districts, the court held, are likely unconstitutional racial gerrymanders: four “packed” districts with Black populations far larger than necessary to comply with the VRA and three “stripped” districts with artificially small Black populations. Harvard Law School’s Election Law Clinic is litigating the case together with the ACLU of Florida and the Southern Poverty Law Center. A good story about the decision can be found here.

The ruling is noteworthy outside of Jacksonville for a few reasons. First, it involves not just packed districts (the usual targets of racial gerrymandering claims) but also stripped districts. The logic of the cause of action has always applied equally strongly to districts intentionally drained of minority voters, but for whatever reason, such districts have rarely been challenged to date. Second, the ruling is among the first in the racial (as opposed to the partisan) context to rely on redistricting simulations. Kosuke Imai’s expert report showed that when city council maps that satisfy all applicable criteria — including the VRA — are randomly generated, the invalidated districts are outliers in their racial compositions compared to the corresponding simulated districts. Lastly, the ruling squarely rejects “core preservation” as a defense, at least when the prior districts were just as racially gerrymandered as the new ones. As Rob Yablon has pointed out, jurisdictions increasingly claim that partisan and racial gerrymanders are actually aimed at preserving the status quo. This court, at least, wasn’t fooled by this specious argument.

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Montana Supreme Court EDR Decision

In a case being litigated by Harvard Law School’s Election Law Clinic, the ACLU, the ACLU of Montana, and the Native American Rights Fund, the Montana Supreme Court affirmed preliminary injunctions against (1) the elimination of election day registration and (2) the elimination of student IDs as a valid form of voter identification. The decision is here and is based on the state constitutional right to vote. An excerpt from the ACLU’s press release is below.

The Montana Supreme Court today affirmed a preliminary injunction blocking a state law that hinders Native American participation in the state’s electoral process. 

The decision upholds a preliminary injunction against HB 176, which had ended Election Day registration in Montana. Native American voters living on reservations in Montana disproportionately rely upon Election Day registration to register and vote. . . .

Plaintiffs have also secured a preliminary injunction against HB 530, a prohibition on paid third-party ballot collection in Montana, and yet another law that disproportionately and severely burdens Native Americans’ right to vote.

Last month, the Montana 13th Judicial District Court held a two-week trial in the case, involving challenges to HB 176, HB 530, and two other voting-related laws challenged by consolidated plaintiffs. The Court is expected to rule on the full challenges to those laws in the relatively near future.

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“An algorithmic approach to legislative apportionment bases and redistricting”

Christian Haas, Peter Miller, and Steven Kimbrough have posted this very interesting paper using a redistricting algorithm to estimate the impact on minority representation of changing the apportionment base from total population to CVAP. Their results are consistent with this earlier piece I wrote with Jowei Chen. The abstract of the new Haas et al. paper is below.

The apportionment process that precedes redistricting is generally a staid American political ritual. Recent debates about who should be included in the apportionment basis, however, have raised new questions about representation in the apportionment process. To estimate the effects of excluding non-citizens and children from apportionment, we describe an algorithm to simulate drawing of state legislative districts, based on a previously published algorithm, Seed-Fill-Shift-Repair (SFSR), designed to draw congressional districts. To account for the larger number of districts to draw we implement an adapted search heuristic that is able to efficiently create contiguous and population-balanced maps for state legislative districts, which we call SFSR-G. We use SFSR-G to simulate 1000 maps of upper and lower legislative chambers in 12 states to demonstrate that a shift from total population to citizen voting age population as the apportionment basis will reduce minority–majority and minority-opportunity districts. The paper presents findings for all 12 states investigated, and discusses the important case of Texas at greater length.

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“The Partisan Implications of the ISL Theory”

I wrote this piece for Democracy Docket on the partisan implications of the independent state legislature doctrine, solely with respect to congressional redistricting (the subject of Moore v. Harper).

However, at least in the context presented by Moore — congressional redistricting — this assumption is too quick. Of course, in North Carolina itself, the adoption of the ISL theory could result in a fair map being replaced by a Republican gerrymander. But nationwide, North Carolina is more the exception than the rule. Overall, Democrats would modestly benefit from a holding that state legislatures’ ability to draw congressional districts can’t be limited by state courts, independent commissions, or supermajority requirements. To be clear, these partisan effects in no way vindicate the ISL theory. It remains a pernicious claim unsupported by history or precedent that could transfer power to some of the institutions — state legislatures — least deserving of it. Nevertheless, given the Court’s interest in the ISL theory, its partisan implications are well worth investigating. . . .

Finally, the hypothetical Democratic or Republican gerrymander for each potentially affected state simply has to be compared to the enacted plan to estimate the impact of the ISL theory’s adoption. For instance, the most pro-Republican map in the ALARM Project’s North Carolina simulation set is expected to yield 5.0 Democratic seats (out of 14). In contrast, the enacted North Carolina plan is expected to yield 6.9 Democratic seats. This means a ruling in favor of the Moore petitioners might enable North Carolina Republicans to increase their seat tally by about two. Similarly, the most pro-Democratic map in the ALARM Project’s California simulation set has 46.5 Democratic seats (out of 52) while the enacted California plan has 44.5 Democratic seats. If Moore ended the experiment of independent commissions, then, California Democrats might be able to win around two more seats. 

The California example shows that Republican gains due to the ISL theory’s adoption could be counterbalanced by additional Democratic seats elsewhere. In fact, aggregating across all fourteen potentially affected states, Republican gains would be more than offset by extra Democratic seats. There’s only one state other than North Carolina where Republicans could benefit from a ruling for the Moore petitioners: Arizona, where a Republican gerrymander might have 0.4 more Republican seats than the enacted congressional plan. However, there are seven states beyond California where Democrats could be advantaged by a holding that state legislatures can gerrymander to their heart’s content: Colorado (0.9 more Democratic seats), New York (0.7), Washington (0.6), Connecticut (0.5), New Jersey (0.5), Maine (0.2) and Maryland (0.2). Summing these figures, Republicans could add roughly 2.3 seats from the ISL theory’s adoption while Democrats could tally about 5.6 seats more. The chart below displays these results graphically. 

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“Widespread Partisan Gerrymandering Mostly Cancels Nationally, but Reduces Electoral Competition”

This interesting new paper by Chris Kenny et al. compares the newly enacted House plans across the country to sets of randomly generated maps. The bottom line is that the House as a whole is just slightly more pro-Republican than would be expected under nonpartisan redistricting. There’s plenty of gerrymandering but it mostly cancels out.

Congressional district lines in many U.S. states are drawn by partisan actors, raising
concerns about gerrymandering. To isolate the electoral impact of gerrymandering
from the effects of other factors including geography and redistricting rules, we
compare predicted election outcomes under the enacted plan with those under a
large sample of non-partisan, simulated alternative plans for all states. We find that
partisan gerrymandering is widespread in the 2020 redistricting cycle, but most of
the bias it creates cancels at the national level, giving Republicans two additional
seats, on average. In contrast, moderate pro-Republican bias due to geography and
redistricting rules remains. Finally, we find that partisan gerrymandering reduces
electoral competition and makes the House’s partisan composition less responsive
to shifts in the national vote.

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“Republicans’ next big play is to ‘scare the hell out of Washington’ by rewriting the Constitution. And they’re willing to play the long game to win.”

Interesting story about the effort by conservatives to call a constitutional convention. One wonders why conservatives are the ones pushing this idea, given the record of the current Court, and why progressives are so content with the constitutional status quo.

“You take this grenade and you pull the pin, you’ve got a live piece of ammo in your hands,” Santorum, a two-time GOP presidential candidate and former CNN commentator, explained in audio of his remarks obtained by the left-leaning watchdog group the Center for Media and Democracy and shared with Insider. “34 states — if every Republican legislator votes for this, we have a constitutional convention.” . . .

Some states have tried and tried — without result — to prompt a constitutional convention. They’ve together issued hundreds of pro-convention resolutions or calls over 200 years to reroute constitutional amendment powers away from Washington. What’s new now is the ever-evolving power coupling of a corporation-backed ideological juggernaut led by ALEC, a nonprofit organization with close ties to large tobacco and drug companies, and a determined Republican Party increasingly dominating many of the nation’s 50 statehouses.  . . .

Their goals include gutting federal environmental standards, nixing nationwide education requirements, and creating an incredibly high threshold for Washington, DC, or a territory to earn statehood. Some would like to make it difficult, if not impossible, for someone — National Institute of Allergy and Infectious Diseases Director Anthony Fauci, for example — to work for decades within the federal government.

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“American media wants to save democracy. Is it helping?”

Interesting LAT story on the role of the media in reporting on — and shaping — the debate about American democracy.

Top American journalism leaders have publicly argued that the continued existence of democracy in the U.S. is no longer something that can be taken for granted. Efforts to undermine voters’ choices across the U.S. have given way to new “democracy” beats, where newsroom editors and reporters no longer simply cover candidates and elections but voter registration laws, ballot access and election integrity. . . .

There are signs that some of those attitudes have also reached the newsroom rank-and-file. While 76% of American adults polled in a recent Pew Research Center study said that journalists should always strive to give every side equal coverage, a majority of journalists surveyed disagreed.

Andy Donohue, executive editor of projects for the publication Reveal at the Center for Investigative Reporting, who predicted the rise of the democracy beat in 2020, said in the journalism industry that there is “very broad recognition from everyone from newsroom leaders to reporters that we very much are in a red-alert threat for a real demise to our democratic system.” . . .

But in newsrooms, in books and on the air, journalists and experts are openly pondering how American democracy can win the argument for its own survival when the battle of persuasion is with a public skeptical of their authority. Americans’ trust in newspapers and TV news is at an all-time low. Many Republican politicians have simply stopped talking to mainstream reporters, preferring the company of friendlier conservative outlets and personalities.

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“The RNC ‘election integrity’ official appearing in DOJ’s Jan. 6 subpoenas”

Politico on the DOJ focusing on the involvement of the RNC’s director for “election integrity,” Joshua Findlay, in fake electors schemes in Arizona and Georgia.

In addition to a group of former President Donald Trump’s top lawyers, the Justice Department’s Jan. 6 probe is also seeking communications to and from a Republican National Committee staffer in a sensitive role.

At least three witnesses in DOJ’s investigation of so-called alternate electors in the 2020 election — two in Arizona and another in Georgia — have received subpoenas demanding communications to and from Joshua Findlay, who is now the RNC’s national director for election integrity. . . .

Findlay’s visibility into plans regarding alternate electors didn’t end on Election Day. POLITICO reviewed an email sent to him on December 12, 2020, showing David Shafer — head of the Georgia Republican Party, and himself an alternate elector — directing one of his subordinates to contact Findlay about the alternate elector plans.

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